Gordon v. Fahrenberg & Penn. pursuant to article 508 of the Revised Code, because the construction is not entirely on plaintiff's soil. There being no express law applicable to a case like this, we think it equitable (Revised Code, article 21), to allow the defendant, D. B. Penn, to remove that part of the construction erected by him resting on the soil of the plaintiff. It is therefore ordered that the judgment herein be amended by striking out that part decreeing the plaintiff the owner of the fifty thousand feet of lumber, and also by striking out the judgment in reconvention, reserving to the defendant, D. B. Penn, the right to remove that part of the sawmill and appurtenances constructed by him, resting on the soil of the plaintiff, and as thus amended it is ordered that the judgment be affirmed, appellee paying costs of appeal. No. 3355 and 3088. PATRICK HIGGINS v. C. C. HALEY. The plaintiff moved for a new trial in the court below on the ground that, during the recess of the court, the jury was illegally and improperly influenced by the defendant and his accomplices to render a verdict in favor of said defendant, notwithstanding the judge had warned the jury that they were to hold no conversation with any person upon the merits of the case before them. On the trial of this motion, plaintiff attempted to prove his allegations by witnesses, which he was not permitted to do. The judge a quo erred in refusing to hear the testimony offered. A PPEAL from the Fifth District Court, parish of Orleans. Leaumont, J. Jury trial. Hays & New, for plaintiff and appellant. H. C. Miller and John Livingston, for defendant and appellee. MORGAN, J. These two different records form in reality but one case. Plaintiff moved the court for a new trial on the ground that on the day of trial, after the court had adjourned at three o'clock to meet at six o'clock of the same day, notwithstanding the judge warned the jury that they were to hold no conversation with any person upon the merits of the case before them, a portion of the jury did hold conversation with the defendant, and with his agents and instruments upon the merits of the cause, and were illegally and improperly influenced by the defendant and his agents and accomplices to render a verdict in favor of the defendant; that improper influences were brought to bear upon the jury, or a portion thereof, during the said recess; and he swore that he had received this information from one Daniel Haley; all of which he offered to prove by witnesses, and all of which he was prohibited from doing by the court. The judge erred. His admonitions were to be obeyed. If it was a fact that the jury were guilty of misconduct, and that their verdict Higgins v. Haley. was improperly obtained, it should have been set aside, and this was a fact which the plaintiff had a right to establish by evidence. It is therefore ordered, adjudged and decreed that the judgments in these consolidated cases be avoided, annulled and reversed, and that they be remanded to be tried de novo, appellees to pay costs of appeal. ON REHEARING. MORGAN, J. In our former judgment we ordered the case to be remanded to be tried de novo. This was wrong. Plaintiff in the court below moved for a new trial on the ground that the jury had been improperly influenced. On the trial of his motion he offered to prove the fact alleged by witnesses. The court refused to hear them, and he reserved his bill. The district judge erred. Plaintiff should have been heard. As the case now stands before us, we can only pass upon the correctness of the ruling of the judge with regard to his refusal to hear testimony as to the improper conduct of the jury. It is therefore ordered, adjudged and decreed that our former judgment be set aside; and it is further ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed and the case remanded, and that the district judge be instructed to hear the testimony offered by plaintiff on his motion for a new trial, the costs of appeal to be paid by defendant. No. 3285. WILLIAM J. TAYLOR v. KEHLOR, UPDIKE & Co. This case originating in the dismissal of the employe by the employer is governed by art. 2749 of the Civil Code. AF PPEAL from the Sixth District Court, parish of Orleans. Cooley, J. Gilmore & Sons, for plaintiff and appellant. J. W. Thomas, for defendants and appellees. MORGAN, J. Defendants made a contract in writing by which they employed the plaintiff for one year to act as their salesman, the engagement to commence from the first of August, 1869. After a few months' service the plaintiff was discharged, and without cause. His case is governed by the art. 2749 of the Civil Code. See the case of Budinski v. Bidwell et als., just decided. It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that the plaintiff have and recover judgment against the defendants for sixteen hundred dollars, with legal interest from judicial demand, and costs of both courts, with privilege upon the property attached. 26 369 52 2109] O'Hara v. Folwell. No. 5149. MRS. A. G. O'HARA, Natural Tutrix, v. J. N. FOLWELL. The proceeding sought to be injoined in this case was predicated on the mortgage note of Joseph O'Hara, deceased, and in order to make a valid sale of the mortgaged property, the legal representative of his succession should have been made a party to said proceeding. Notices served upon the plaintiff before she was confirmed as natural tutrix, and as such administering said succession, were not sufficient. The proceeding taken against her before her appointment, was in no sense a proceeding had contradictorily with the succession of O'Hara, the mortgage debtor. This court can not assent to the proposition set up in defense, that the notices were sufficient, because subsequently to the mortgage, O'Hara donated the mortgaged property to the plaintiff, his wife, and that the succession of O'Hara, having no interest in the mortgaged property, was not a necessary party. The proceeding was on the mortgage note of O'Hara, and therefore the legal representative of his succession was a necessary party to any suit or other proceeding on that note. Besides, if it were true that the property passed into third hands subsequently to the mortgage, no proceeding by executory process could be had, because in the act of mortgage there was not the non alienando clause. The plaintiff, however, can not disavow her judicial averment that the mortgaged property belongs to the succession of her deceased husband. PPEAL from the Fifth District Court, parish of Orleans. Cullom, J. R. C. Elliott, for plaintiff and appellant. Edward Phillips, for defendant and appellee. WYLY, J. The plaintiff appeals from the judgment dissolving her injunction restraining the executory proceedings sued out by the defendant J. N. Folwell on the mortgage note of $550, made by Joseph O'Hara, deceased. The ground for the injunction is, there was no sufficient notice of the order of seizure and sale, nor notice of seizure; because at the time the said notices were served upon her, she had not yet qualified as natural tutrix, and as such administering the succession of Joseph O'Hara. The notice of the granting of the order of seizure and sale was served on ninth September, 1873, and the notice of seizure of the mortgaged property was served on thirteenth of said month. Plaintiff was not confirmed as natural tutrix till fifteenth January, 1874. The proceeding was on the mortgage note of Joseph O'Hara, deceased, and in order to make a valid sale of the mortgaged property, the legal representative of his succession should have been made a party to said proceeding. Notices served upon the plaintiff before she was confirmed as natural tutrix, and as such administering said succession, were not sufficient. The proceeding taken against her before her appointment was in no sense a proceeding had contradictorily with the succession of O'Hara, the mortgage debtor. The defendant, Folwell, however, contends that the notices were sufficient, because subsequent to the mortgage O'Hara donated the O'Hara v. Folwell. mortgaged property to the plaintiff, Mrs. O'Hara, his wife, and the succession of O'Hara having no interest in the mortgaged property, was not a necessary party. To this proposition we can not assent. The proceeding was on the mortgage note of O'Hara, and the legal representative of his succession was a necessary party to any suit or other proceeding on that note. Besides, if it be true the property passed into third hands subsequent to the mortgage, no proceeding by executory process can be had, because in the act of mortgage there is not the non alienando clause. The plaintiff, however, can not disavow her judicial averment that the mortgaged property belongs to the succession of her deceased husband. It is therefore ordered that the judgment appealed from be annulled, and it is now ordered that the injunction herein be perpetuated, with costs of both courts. No. 2978. WILLIAM O'HERN v. A. B. GOULDY et als. Where the parties who claimed liens under the law granting a privilege to mechanics being This court is satisfied that the claims of certain of the material men in whose favor judgment A PPEAL from the Seventh District Court, parish of Orleans. Collens, J. Cotton & Levy, for plaintiff and appellant. C. T. Hufft, H. D. Ogden, C. E. Schmidt, Randolph, Singleton & Browne, for appellees. ON MOTION TO DISMISS. LUDELING, C. J. In January, 1868, W. O'Hern employed A. B. Gouldy to erect a frame house for him. Gouldy commenced the building and worked until the second installment was paid when he abandoned 371 26 183 118 O'Hern v. Gouldy et als. the work. O'Hern, having put him in default, completed the building. O'Hern then deposited in court $527, which he alleged was the balance due on the contract with Gouldy, and he cited the parties, who claimed liens under the law granting a privilege to mechanics, to enable them to establish their claims and receive their pro rata of the amount deposited. The parties cited appeared and contested with O'Hern, and it matters not whether some of the parties received a judgment for the whole of their claims or not, an appeal will lie from the judgment. 16 An. 252; 15 An. 662; 13 An. 592. The motion to dismiss is refused. ON THE MERITS. TALIAFERRO, J. The plaintiff in January, 1868, engaged the defendant, a builder, to construct a house for him on Camp street, in New Orleans, according to a plan and specifications set forth in a written contract. Defendant, however, before completing the work abandoned it and left the State. The plaintiff having put him in mora employed other workmen to complete the job at the expense of defendant. Various suits were instituted against the plaintiff in the Third District Court by material men for material of various kinds furnished by them and used in erecting the plaintiff's building. The plaintiff it seems instituted this action in the Seventh District Court, as his petition declares, in order to avoid a multiplicity of suits and bring the various claimants into a concursu, for the purpose of having their rights and privileges adjusted, and to have the sum of $527, deposited by him in court, distributed pro rata among these several parties, that amount being, as he represented, the balance due by him to the defendant Gouldy under the contract, and which should go pro tanto towards paying the material men their claims, for which he alleged Gouldy was bound. An order was rendered making the transfer of the various suits from the Third to the Second District Court, and citations were issued to the several parties thus made defendants, who filed separate answers, some averring that the plaintiff himself was bound to them under special agreements; others that the plaintiff and defendant were bound to them in solido, and others claimed only privileges on the fund deposited. A mass of testimony was taken from which the district judge was satisfied that three of the defendants, viz: Mason & Co., F. Zimmerman and G. W. Lyman, had made good their allegations that the plaintiff had bound himself specially for their debts. Judgment was accordingly rendered in their favor, decreeing that the plaintiff should |